Will the ACA Survive the Supreme Court? What Are the Implications?

June 1, 2012

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The Accountable Care Act (ACA) just passed its second anniversary. It is my view that it is a huge and administratively cumbersome bill. The AAN took a neutral position on the bill, a posture that I support. The individual mandate provision, requiring all Americans to have health care insurance, remains the most controversial. For some, this mandate represents the unacceptable expansion of the federal government, and is a central issue under deliberation by the Supreme Court.

However, there are many provisions of the law that substantially benefit our patients without further extension of federal programs.

Since inception, 2.5 million young adults are covered on their parents’ plans.

Seniors saved an estimated $3.2 billion on prescriptions.

Of 18.9 million of those on Medicare, over half have received preventive services without cost.

Over 50,000 adults with preexisting conditions are enrolled in insurance plans.

$900 million dollars paid to fourth–year medical students to retire educational debt.

The National Health Service Corps tripled in size, providing care to rural and underserved areas.

Ultimately, it is estimated that 93 percent of US residents would have health care coverage, most from private programs.

There are several possible outcomes to the case before the Supreme Court. The justices could let the law stand. They could overturn the whole law. Or certain components, such as the individual mandate, could be deemed unconstitutional. It is unclear if they will conclude that severing components of the law is permissible or if the whole law goes.

If the individual mandate were overturned, then funding of some components would be in jeopardy, such as the subsidy for those with limited resources. If only those with medical problems obtain insurance, the premiums would escalate to the point that the program would collapse. There are options that Congress could take to protect the favorable components of the bill. Congress could attempt to create a single–payer system, or it could refashion the mandate as a true tax on Americans. Both options would be unpopular and likely unfeasible. Given the polarization in Washington, any action is highly unlikely even after the coming election. Without action by Congress, most of the beneficial components of the law would likely collapse.

Some conclude that if the entire law were overturned, there would be chaos in health care. Provisions of the law authorizing payments retroactively would become illegal. Would physicians be required to refund payments? Would Medicare recipients be required to retroactively pay for preventative services? Prescription prices for many sick Medicare recipients would rise. Adults and children with preexisting conditions would likely be dropped from coverage. The Nation Health Services Corps, which is currently funded under the ACA, no longer would be authorized. Would medical students be required to pay back the $900 million they have “illegally” received? For those institutions that have elected to participate in ACOs, most physician owned and operated entities may be required to pay back funding and
ACOs would no longer exist.

Beyond the direct impact, political turmoil also likely would occur. Seniors of both political parties do not want Medicare touched. Would there be a major backlash against those who pushed to overturn the law from those who lost coverage and services? It certainly would make an interesting fall election much more interesting.

If the law remains whole, Republicans won’t go quietly. The persistent unpopularity of the individual mandate would give them ammo to force a vote to repeal the bill or postpone its implementation, and “repeal and replace” would remain a rallying cry for the party through November and beyond.

There are potential solutions to all of these issues. However, Congress appears incapable of any thoughtful and meaningful legislation. Certainly, barbs and recriminations will arise from both sides of the aisle. Promises to cooperate and find solutions are not credible. It is likely that it will be a generation before widespread health care reform is considered again.

For the neurologic patients we all care for, Supreme Court action to overturn a portion or all of the ACA would create substantial difficulties. Children with preexisting conditions would lose coverage. Gone would be the ban on lifetime limits and Part D increased coverage. The donut hole would be back. The CMS Center for Innovation, which has developed programs to encourage the provider community to find solutions to the funding system we all loathe, would no longer exist. We would be left with legislation and regulation controlling the cost of health care for federal programs such as Medicaid and Medicare. It is unclear how private insurers will respond. Currently, they are required under the ACA to pay out 85 percent of revenues for services. Without that restriction, profits would likely increase for those companies.

No matter one’s political perspective, those who will be most affected by major changes to the bill will be patients.

The Supreme Court will make its decision based on the Constitution, not the social implications of their decisions. It is curious that now both parties have accused the justices of activism when they do not like the potential implications of the decisions.

Stand by for late June when the court will likely announce its decision.